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performers merely because they hire them to make records for home use?
On the basis of the record so far, we think not. On the contrary, we fear that to vest the manufacturer with such custody and control of these rights will be to engage the performer in a meaningless and frustrating subversion of his legitimate objectives.
So we propose vesting the sound recording performing right in the performer independent of the manufacturer. Only in this way will the performer be sure that his rights will be affirmatively enforced within the framework of the law. We propose changes in the copyright revision bill either in the form which we have previously submitted or by appropriate modification of the Williams amendment.
This is an electronic world which bears little resemblance at home or abroad to that of 1909 when the patient terrier sat before the talking machine entranced by his master's voice. Now we hear the voice of the whirling satellite and it is high time for us to forge new legal tools to replace a copyright law made in and for the era of the handcranked phonograph. It is high time for a full and fair congressional reevaluation of the competing participants in the entertainment industry based on what is right and fair and not only on the objections of vested privilege. It is high time to enact a new system which gives creative performers an economic incentive to continue in their chosen profession-always with due regard for the public interest. This is the kind of law which the performing musicians propose—a law which is long overdue—a law which will democratize the copyright system of this land—a law which should not be left once again to a future Congress but enacted here and now.
Thank you very much.
Senator BURDICK. Thank you. I believe attached to your testimony is the proposed language of the amendments ?
Mr. KENIN. Yes, sir.
APRIL 11, 1967. PERFORMING RIGHTS IN SOUND RECORDINGS Changes in S. 597 (90th Congress, 1st Session) proposed by American Federation of Musicians of the United States and Canada. 1. $ 101
To “perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a sound recording, to make audible the sounds fired in it, or in the case of a motion picture or other audio-visual work, to show its images in sequence or to make the sounds accompanying it audible. 2. $ 106 (4)
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures, and sound recordings, to perform the copyrighted work publicly. 3. $ 110
add “sound recording" to each of subdivisions (2), (3) and (4) 4. $ 114 Scope of exclusive rights in sound recordings.
(a) The Exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by clauses (1), (3) and (4) under section 106.
(c) This section does not limit or impair the exclusive right to perform publicly any of the works specified by section 106 (4) other than by performing
publicly sound recordings embodying such works. The exclusive right to perform publicly the work when embodied in a sound recording is independent of the exclusive right specified by section 106(4) to perform the sound recording publicly. The exclusive right to perform a sound recording specified by section 106 (4) does not carry with it any right to use any other work embodied in such sound recording.
(d) Availability and Scope of Compulsory License for public performance of sound recordings.
In the case of sound recordings, the exclusire right provided by clause (1) of section 106, to publicly perform such sound recordings is subject to compulsory licensing under the conditions specified by this section. (1) When phonorecords of a lawfully recorded sound recording have been distributed to the public under the authority of the copyright ouner, any person may, by complying with the provisions of this section, obtain a compulsory license to perform such phonorecords publicly. Any person who wishes to obtain a compulsory license under this section shall, before or within thirty days after first performing any such phonorecord publicly, serve notice of his intention to do so on the copyright owner. If the registration or other public records of the copyright office do not identify the copyright owner and include an address at which notice can be serred on him, it shall be sufficient to file the notice of intention in the Copyright Office. The notice shall comply, in form, content, and manner of serrice with requirements that the Register of Copyrights shall prescribe by regulation.
(2) Failure to serve or file the notice as required in clause (1) forecloses the possibility of a compulsory license, and, in the absence of a negotiated license, renders the public performance of phonorecords fully actionable as acts of infringement under section 501.
(e) Royalty Payment Under Public Performance Compulsory License.
(1) To be entitled to receive royalties under a compulsory license to publicly perform a phonorecord, the copyright owner or his designee must be identified in the registration or other public records of the Copyright Office. In the case of joint works, such identification shall designate a single person duly authorized to receive the royalties in behalf of all authors for the public performance of a phonorecord. The owner is entitled to royalties for the public performance of phonorecords made after he is so identified but he is not entitled to recover for any previous public performances.
(2) Except as provided by clause (1), the royalty under a compulsory license shall be payable for every public performance of a phonorecord made in accordance with the license.
(3) The rate of royalty and the terms and conditions relating thereto shall be just and reasonable and shall be established from time to time by the Register of Copyrights after public hearing. Such rate, terms and conditions may be reviewed and reestablished at any time by the Register of Copyrights after public hearing either on his own initiative or upon complaint and shall be revieiced and reestablished after hearing at least once in each ten year period.
(4) If a licensee fails to pay the royalty as estabilsend by the Register of Copyrights, the copyright owner may give written notice to the licensee that, unless the default is remedied within thirty days from the date of notice, the compulsory license will be automatically terminated. Such termination renders the public performance of phonorecords for which the royalty has not paid, fully actionable as acts of infringement under section 501. 6. $ 116.
Scope of exclusive rights in non-dramatic musical works: Public performances by means of coin-operated phonorecord players: Add at end of section:
The foregoing provisions of this section shall not relate to the right under clause (4) of section 106 to perform publicly a phonorecord as distinguished from the non-dramatic musical work embodied in such phonorecord. 7. 8 201. wnership of Copyright
Insert (b) the following and reletter present (b)-(d):
(1) With respect to the exclusive rights to reproduce a sound recording specified by clause 1 of section 106 and to distribute copies or phonorecords of a sound recording specified by clause 3 of section 106 the author of the sound record is the producer thereof.
(2) With respect to the exclusive right to perform a sound record publicly specified by clause 4 of section 106, the author of the sound record is the person
whose performance of musical, spoken or other sounds is fixed in the sound recording. 8. $ 302. Duration of copyright
Works created on or after January 1, 1968. Insert a new clause (d) and reletter present (d)-(e) :
(d) Sound Recordings:
In the case of a sound recording and with respect to the exclusive right to perform such sound record publicly specified by clause h of section 106, the copyright endures for a term of ten years from the year of the first publication of phonorecords of the work. 9. $ 402(b) (3)
(3) with respect to the rights specified in clauses (1) and (3) under section 106, the name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner; if the producer of the sound recording is named on the phonorecord labels or containers, and if no other name appears in conjunction with the notice, his name shall be considered a part of the notice. 10. $ 402(6) (4)
Add a new subdivision (4) to $402(b) to read as follows:
(4) with respect to the right specified in clause 4 under section 106, the name of the person duly authorized to receive royalties on account of the public performance of the sound recording as specified in clause (4) of section 114. The producer of the sound recording shall place the name of such person duly authorized to receive royalties on phonorecord labels or containers upon the request of such person and the failure of the producer so to do shall constitute an infringement fully actionable under section 501 of the rights specified in clause 4 under section 106 as to each copy of the sound recording. 11. $ 406. Deposit of copies or phonorecords for Library of Congress
(a) Except as provided by subsection (c), the owner of copyright or of the exclusive right of publication, or in the case of a sound recording the owner of the exclusive right of public performance specified under clause (4) of section 106 in a work published with notice of copyright in the United States shall deposit, within three months after the date of such publication :
(Remainder of section unchanged) 12. $ 602. Infringing importation of copies or phonorecords
(a) Importation into the United States, without the authority of the owner of the exclusive right to distribute copies specified in clause (3) under section 106, of copies or phonorecords of a work that has been acquired abroad is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501. This section does not apply to:
(Remainder of section unchanged)
Senator BURDICK. You say on page 7, the second paragraph, that you propose vesting in the sound recording performing rights in the performer independent of the manufacturer.
That differs from the Williams amendment?
Senator BURDICK. What would be the mechanics? How would you make your collections?
Mr. KENIN. Well, the collections would not be a difficult thing at all, Senator Burdick. This is the day of the computers, data processing. We have already, in New York City, where the federation offices are located, bargained collectively with the recording companies for the payment of special payments to recording performers for the sale for home use and the thousands of musicians who make recordings are paid almost electronically. Their names are submitted with contributions by the companies to a special fund. The U.S. Trust Co. administers this fund for us. Payments are made.
We have the performing rights societies themselves that have established the simplicity of this problem. We have a pension fund which covers 50,000 musicians in the United States and Canada, which is handled electronically on a more complicated system, perhaps, than this one. There is no difficulty about that.
Senator BURDICK. Well, I am not so sure. Since we have brought jukeboxes into this legislation, they have a veritable nightmare of regulations to make collections from jukeboxes. Now, you would have to have some kind of a system to base upon the number of records sold and something to report on the number of records.
Mr. KENIN. Well, the system we use in the special payments fund is something like this: records are kept on the sessions performed by the recording companies. The total collections in this special payments fund are over here. This man's sessions are here. They total the total number of sessions that were performed by all musicians, divide that into the total money received, and an adequate portion of those moneys are paid on the basis of that kind of system.
It is a very simple system. I do not know what the jukebox problem is. I do not think I can help them any, but this system we are not concerned with at all.
Senator BURDICK. Would not this performance royalty be based upon the number of records sold? Mr. KENIN. No, on records used.
Senator BURDICK. All right, on records used. You have to have some data that shows the number of records used.
Mr. KENIN. Well, the performing rights societies already have been in existence for some time and reports are made to the performing rights society on the basis of their contracts. I do not know whatMr. Adler reminds me, they either have a blanket license to perform any or all of the pool which the performing rights society seeks to license or they can buy specific licenses for specific works.
Senator BURDICK. Do you have any suggestion as to the amount of the royalty?
Mr. KENIN. Senator, I do not have. I do not know what the amount of the royalty is. I think the important thing is the moral right that is involved here. I think there is enough money in this industry to properly take care of those people who make such a valuable contribution to it.
Senator BURDICK. Thank you very much.
Senator McCLELLAN. I would like to get the fundamentals of this straightened out. Tell me so I can understand and make it plain on this record, when a broadcasting station plays a record of, say, a popular song, who profits from it and what royalties or fees are paid and to whom as of now?
Mr. KENIN. As of this moment, when a record is played by a broadcasting company, the ones who profit from it are the broadcasting companies who sell the time to some sponsor.
Senator McCLELLAN. Let's get it all in here. Broadcasting companies
Mr. KENIN. Yes, sir.
Mr. Kenin. They get the major profits from the use of that record from time sales. The sponsor who buys the time sales participates in considerable savings because the artists on the record
Senator McCLELLAN. The purchaser of the time sales ?
Mr. KENIN. Yes, because the artists on the record are performing involuntarily for a sponsor with whom they have no contact whatsoever. That is two. And the performing rights societies, of course, Senator.
Senator McCLELLAN. Wait, now; who?
Senator McCLELLAN. How many of them?
Senator McCLELLAN. How many slices of the pie are being cut? I want to look at one of these things and see what really happens as of now.
Mr. KENIN. The only expenditure made by the broadcasting company up to this point is to the performing rights society which licenses the use of these copyrights on the record. Now, as to their total take, I have read figures in the trade press—I have no direct connection with them. I could not tell you how much they take in from the sale or from the licensing of these copyrights. But that figure is available.
Senator McCLELLAN. Of course, the broadcasting company makes some provision to sell the time of its station, of the facility.
Mr. KENIN. Yes.
Senator McCLELLAN. That does not come, though, from the creative claim of profit or benefit, from the production of it. That is a facility, such as I would rent an automobile. That has nothing to do with the royalties paid on a part of it. I want to get the royalties, the fees that are paid. Who gets that for the privilege of letting it be played on the station?
Mr. Kenin. Senator, the only persons receiving monies for the use of copyrights which are impressed on records are the composers and authors whose works are used.
Senator McCLELLAN. That is what I want to get, the composer and author.
Mr. KENIN. Whose works are used. Their agent, of course, is the performing rights society.
Senator MCCLELLAN. All right, who else?
Senator McCLELLAN. You mean the performer today-I am an author. I compose a song. I have it copyrighted. Somebody has to sing it, somebody who is going to buy a sheet of music; somebody has to sing it. Does the fellow who sings it, the performer, get nothing?
Mr. KENIN. He does not get a dime for public use of the record. What he gets, Senator, he gets a fee for making the record for home use. That is all it was intended for. The musicians have a fixed fee. They have a three-hour session.
Senator McCLELLAN. Now, is that all it is intended for?
Mr. Kenin. Well, to take the the language of the recording companies, and you will find it in the footnotes in our publication that we submitted to the House committee, which we have given to this com